Citation Nr: 9833052
Decision Date: 11/06/98 Archive Date: 11/17/98
DOCKET NO. 98-01 481 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUE
Entitlement to an increased evaluation for epilepsy, grand
mal, currently evaluated as 40 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
C. Eckart, Associate Counsel
INTRODUCTION
The veteran served on active duty from September 1952 to June
1954. This case comes before the Board of Veterans’ Appeals
(Board) from a rating decision of January 1997 from the
Montgomery, Alabama Regional Office (RO) of the Department of
Veterans Affairs (VA), which denied the veteran’s claim
seeking entitlement to an increased evaluation for his
service-connected epilepsy.
The issue of entitlement to a total rating for compensation
purposes based upon individual unemployability has been
raised by the evidence of record. This issue has not been
developed for appellate review and is therefore referred to
the RO for appropriate disposition.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran in essence, contends that he is entitled to an
increased evaluation for his epilepsy. He contends that his
seizures have increased in frequency and intensity.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1998), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence is against an increased evaluation for the veteran’s
grand mal epilepsy.
FINDING OF FACT
The veteran’s service-connected grand mal epilepsy is
manifested by an episode of grand mal seizure in December
1996. There is no objective clinical evidence of further
major seizure activity since that time.
CONCLUSION OF LAW
A rating in excess of 40 percent for epilepsy, grand mal, is
not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38
C.F.R. §§ 4.121, 4.122, 4.124(a), Diagnostic Code 8910
(1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Factual Background
Service medical records reveal that the veteran received head
injuries from a land mine explosion in June 1953. During his
hospitalization in July 1953 for these injuries, he had a
grand mal-type seizure, and a prior history of two grand mal
seizures during childhood was noted. He was diagnosed with
epilepsy in July 1953.
By rating decision dated September 1954, service connection
for epilepsy, grand mal, was granted by the RO and a 30
percent evaluation was assigned thereto. The evaluation was
increased to 40 percent disabling by the RO in a September
1980 rating decision. The January 1997 rating decision on
appeal confirmed and continued this evaluation.
VA treatment records from March 1978 through July 1980
revealed ongoing problems surrounding the veteran’s
noncompliance with medication dosages. His Phenobarbital and
Dilantin levels were repeatedly found to be low, and he was
considered noncompliant with his medication in November 1978.
His levels continued to be low in July 1980 and he was again
regarded as noncompliant. Between March 1978 and July 1980
at least seven seizures were reported.
In December 1996, the veteran was hospitalized four days for
a grand mal seizure episode which was said to have lasted
several minutes, with no urinary incontinence or tongue bite.
He also denied shortness of breath, chest pain or fever prior
to the seizure. His Dilantin level was 0.9 on admission, he
was given 300 mg of Dilantin on admission, and an additional
100 mg upon return of the results of his Dilantin levels. He
was reported to have been seizure free for three years prior
to this incident. His Dilantin levels were returned to
normal and he was discharged following no other seizures
since admission. The report from a CT scan of the head taken
in December 1996 revealed an impression of probable right
anterior parietal infarct.
VA laboratory reports from December 1996 through August 1997,
reveal recurrent findings of less than the therapeutic range
of anticonvulsant medication. Repeatedly, Phenobarbital
levels fell below the therapeutic range of 15 to 40 ug/ml, in
December 1996, January 1997, June 1997 and September 1997.
Dilantin more consistently fell within the therapeutic range
of 10-20 ug/ml, although it was noted to be low in December
1996.
The report from a December 1997 VA examination for epilepsy
revealed a history provided by the veteran’s wife of six
seizures in 1996, with two seizures close together in
December 1996 which required hospitalization. The seizures
were described by the veteran’s wife as sometimes being a
blank stare, which may last for two minutes, and sometimes
involving chronic and tonic movements, causing him to fall if
standing and sometimes causing loss of bladder control, but
not bowel control. His wife reported the veteran as being
nervous, confused and having memory problems since January
1996. Complaints of intermittent headaches for three years
were also noted. The diagnosis rendered was seizure disorder,
secondary to remote head injury. On VA psychiatric
examination, also done in December 1997, the veteran was
noted to complain of feeling physically weak and confused
since his most recent seizures in 1996. He also complained
of right arm problems, with tremors. His wife gave a history
of the veteran being treated for a stroke in December 1996.
A lay statement submitted by the veteran’s wife in November
1997, documented the veteran’s seizures from January 1996 to
October 1997. She stated that the veteran had a seizure in
May 1996 and in November 1996, with no indication as to their
nature and duration. In December 1996, she reported that the
veteran had a seizure at home lasting over seven minutes, and
had a second one while be treated at the VA hospital, where
he was said to have lost control of his bladder. He had two
more seizures of unspecified nature and duration in March and
July 1997.
Analysis
Disability evaluations are determined by the application of a
schedule of ratings which is based upon an average impairment
of earning capacity. 38 U.S.C.A.
§ 1155 (West 1991); 38 C.F.R. Part 4, § 4.1 (1998). Separate
diagnostic codes identify the various disabilities. Where
there is a reasonable doubt as to the degree of disability,
such doubt will be resolved in favor of the claimant. 38
C.F.R. § 4.7 (1998). In addition, the Board will consider
the potential application of the various other provisions of
38 C.F.R., Parts 3 and 4, whether or not they were raised by
the appellant, as well as the entire history of the
appellant's disability in reaching its decision, as required
by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Because
the veteran is seeking an increased disability rating, the
more recent medical evidence is of greatest probative value,
although the veteran’s disability must also be viewed in
light of its medical history as a whole. See 38 C.F.R. §
4.1.
The veteran’s epilepsy is currently evaluated as 40 percent
disabling by the RO. The RO has evaluated the veteran’s
seizure disorder at the 40 percent rate under the provisions
of 38 C.F.R. § 4.124a, Diagnostic Code 8910, as indicated in
the statement of the case issued in November 1997 in support
of the January 1997 rating decision which confirmed and
continued a 40 percent evaluation for the disorder.
Under Diagnostic Code 8910, grand mal epilepsy is rated under
the general rating formula for major seizures contained in
38 C.F.R. § 4.124a. Under this formula, epilepsy manifested
by at least one major seizure in the last six months, or two
in the last year, or an average of at least five to eight
minor seizures weekly, warrants a 40 percent evaluation. Id.
Epilepsy manifested by an average of at least one major
seizure in four months in the past year, or nine to ten minor
seizures per week, warrants a 60 percent evaluation. Id.
Epilepsy manifested by an average of at least one major
seizure in three months in the past year, or more than ten
minor seizures weekly, warrants an 80 percent evaluation.
Id. An average of at least one major seizure per month over
the last year warrants a 100 percent evaluation. Id.
A “major seizure” is characterized by the generalized
tonic- clonic convulsion with unconsciousness. Id. at Note
(1). A “minor seizure” consists of a brief interruption in
consciousness or conscious control associated with staring or
rhythmic blinking of the eyes or nodding of the head
(“pure” petit mal); or sudden jerking movements of the
arms, trunk or head (myoclonic type); or sudden loss of
postural control (akinetic type). Id. at Note (2). This
formula makes no distinction between diurnal and nocturnal
major seizures. Id. In the presence of major and minor
seizures, the predominating type is to be rated. Id. This
rating will not be combined with any other rating for
epilepsy. Id.
Upon review of the evidence, the Board finds that an
evaluation greater than 40 percent is not warranted for the
veteran’s seizure disorder. The medical evidence does not
reveal that the veteran has suffered a grand mal seizure
since December 1996, and thus indicates that he does not
average a major seizure every four months which would warrant
a 60 percent evaluation under Diagnostic Code 8910. Nor does
the evidence reveal that he averages nine to ten minor
seizures per week, which would also entitle him to a 60
percent evaluation under Diagnostic Code 8910. The lay
statement indicated seizure activity both prior and
subsequent to December 1996, is inconsistent with the
histories provided to examiners and failed to indicate
whether the seizures were grand mal or petit mal. See
38 C.F.R. § 4.121. As such, the evidence of record
establishes that the veteran’s seizure disability does not
warrant greater than the 40 percent evaluation currently
assigned.
ORDER
An increased rating for a service-connected epilepsy, grand
mal, is denied.
JOY A. MCDONALD
Acting Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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